Last Week, in a Small Hearing Room at Fort Lewis, a Young Soldier Put the Iraq War on Trial

by Eli Sanders

Lieutenant Ehren Watada seems to know his chances are slim. He is trying to convince the U.S. Army that the war in Iraq is illegal, a task that would be challenging for anyone, and is even more so for Watada, a 28-year-old officer who has, with much ensuing media attention, refused to deploy to Iraq. "He is willing to accept some form of punishment," Watada's lawyer, Eric A. Seitz, told military officials at a packed hearing at Fort Lewis army base on August 17, tacitly acknowledging his client's difficult position.

After deliberately missing the deployment of his Iraq-bound Stryker brigade on June 22, Watada was charged with multiple violations of the Uniform Code of Military Justice—one count of missing movement, two counts of contempt toward officials, and three counts of conduct unbecoming an officer. It was a contentious ending to a military career that began with the stuff of Army recruiters' dreams: A patriotic young man who simply wanted to defend his country against terrorists.

By his own account, Watada joined the military in 2003 at the age of 25 because he felt the United States was in danger. This was two years after the Twin Towers had been leveled by terrorists flying hijacked airliners, a year after the terrorist bombings in Bali, and during the run of constant terror alerts and heated rhetoric that marked the build-up to the Iraq war.

"I had the idea that my country needed me," Watada recently told an interviewer for the liberal website TruthOut.org.

His first rotation took him to South Korea, where he received stellar reviews from his superiors, but while he was racking up accolades he was also developing a different view of the Iraq war, reading books and articles that led him to conclude that the U.S. attack on Iraq was "manifestly illegal." That transformation led to his refusal to deploy, and to his current confrontation with the military justice system.

The August 17 hearing was simply meant to allow the Army's investigating officer, Lieutenant Colonel Mark Keith, an opportunity to hear arguments from both sides before deciding whether to recommend a court-martial for Watada. In the language of civilian courts, it was a hearing about whether to have a trial. But what transpired suggested that if Watada is ultimately court-martialed, as seems likely, the military will be dealing with more than just a few violations of its code. In prosecuting Watada, it will also have to defend the legality of a war that is increasingly seen as a mistake (if not worse), and as a result is steadily losing its public support.

As his lawyer noted, Watada repeatedly looked for ways out of this confrontation with the military. When he realized he could not allow himself to deploy to Iraq, Watada asked to be sent to Afghanistan, a war he supports because it has a clear connection to an enemy that attacked the U.S. The request was denied. Watada then asked to resign. That request, too, was denied. After refusing to deploy and having the book thrown at him by Army prosecutors, Watada suggested a compromise: a less-than-honorable discharge and some non-prison form of punishment. The military wasn't interested. All of this suggests to Seitz that the military wants this confrontation with his client—wants to make an example of Watada.

"That's fine with us," Seitz said on August 17 before heading into the hearing, which he promptly used as an opportunity to put the Iraq war on trial. Afterward, explaining his strategy, he said: "We really want the military to know what's coming."

* * *

The spring of 2003, when Watada enlisted, was a tense and confusing time. The U.S. had just deposed the terrorist-sheltering Taliban leadership in Afghanistan, but the "war on terror" continued with Osama bin Laden still on the loose, the American population still jittery, and the military now gearing up for its second major offensive.

Phase two of the war on terror was a war of choice—or, as President Bush described it, a "preemptive war"—against a longtime American adversary, Iraq. Even as a surging patriotism drove Watada to enlist, he was aware that many people disagreed with the arguments being used to justify this new war. He knew there were doubts about the links the Bush administration was drawing between Iraq and the attacks of September 11, 2001. He also knew there were doubts about Iraq's alleged weapons of mass destruction. What he couldn't imagine, however, was that he was being misled.

"I could never conceive of our leader betraying the trust we had in him," he told the TruthOut interviewer.

Watada, raised in Honolulu, is now doing desk work at Fort Lewis, just south of Tacoma, as he awaits his legal fate. In person, he has a serene bearing and a hopeful, earnest face. It's the face of an idealist, a face that reminds of the great chasm between the way the world should be and the way it actually, disappointingly, is. In Watada's world—or, at least, in his world as it was in 2003—it's hard to imagine a leader betraying the trust of his people.

There is, of course, no shortage of such leaders in the wider world, now and ever since the beginning of storytelling, but when Watada tells his story of being disappointed by Bush, there is something fresh about it. Perhaps it is that hearing about the loss of innocence always hurts, no matter how many times such loss is repeated. Or perhaps it is that so many citizens of this country can relate to Watada's particular disappointment.

"Like millions of Americans," Watada says in a recent web video, "I believed the administration when they guaranteed that Saddam [Hussein] had weapons of mass destruction and had the willingness to use them against his neighbors and also the U.S. And I believed the administration when they said that Iraq had ties to al-Qaeda and 9/11." He is wearing a plain gray sweatshirt as he says this, staring into the camera with serious, unblinking eyes.

"Since then," he continues, "I have found those premises to be false."

It is Watada's genuine and compelling dismay, directed both inward and outward, that makes him such a good spokesman for the antiwar movement. His resistance to the typical attacks from war supporters helps, too. Watada's patriotic motivations, and the good reviews he received from his commanders until this year, make it impossible to suggest he is a coward in military clothing—to "Swift Boat" him, as was done with Vietnam veteran John Kerry during the last presidential election—and his succinct eloquence makes it hard to call him crazy or unhinged, as was done to Cindy Sheehan.

His desire to defend the U.S. against foreign threats also makes it impossible to tarnish him as a "cut and run" coward—or, worse still, a wimpy liberal. And the plain, unselfconscious way in which Watada talks about his evolution over the past few years allows him to push the debate over the Iraq war beyond the normal limits—further than it has been pushed by Kerry or John Murtha or Nancy Pelosi, further than it has been pushed by the handful of Republicans now questioning the war, further, even, than most liberal pundits and bloggers have dared to.

Instead of talking about whether the Iraq war was wise, or whether it has been well executed, Watada talks about whether it was ever legal to begin with. He clearly wants to engage in a new critical discussion about the war, but also, he has to. He faces up to seven years in military prison unless he can convince the military justice system that his commanders were issuing an illegal order when they told him to deploy to Iraq—an order that, by virtue of its illegality, he had an obligation to refuse.

* * *

A military hearing is a strange thing. For starters, everyone involved is wearing the same fatigues and boots—the defendant, the prosecutors, and even the investigator, who plays a judge-like role. The on-base setting and the sameness of the attire all serve to create a sense of unreality, a sense that everyone is just acting and for the most part playing roles to which they are unaccustomed. In the case of the investigator, Keith, this was in large part true. As he told the hearing audience at the outset, he is not a lawyer and has never before served as a military investigator.

Seitz, Watada's civilian defense lawyer, was the only one in the room wearing a suit, and he painted his client's legal predicament as one entirely of the military's making. He recited Watada's attempts to get out of his Iraq deployment by reaching compromises with military officials and then complained, "All of those efforts were rejected."

Yet it seems a bit unrealistic to imagine that the military would ever have backed away from the hard line it is taking with Watada. Part of waging war is controlling the narrative about the war, and if the army came to be seen as giving credence to Watada's position on the war's illegality, it would have a serious problem on its hands. "It's just dangerous in our army to allow that to happen," said Captain Dan Kuecker, the lead military prosecutor.

The result of these opposing hard lines was, as Seitz and Watada no doubt intended, a rare opportunity to see a serious debate over the legality of the war—a war that has become the defining political and foreign-policy issue of the time and yet is still difficult for Americans to discuss without descending into recriminations about lack of patriotism or lack of intelligence. The debate felt a bit tardy, coming more than three years after the fall of Baghdad, but it was nevertheless refreshing.

Francis Boyle, an expert in international law whose mentor at Harvard wrote the army's field manual on land warfare, was the lead witness for Watada. He told the hearing room that "under the circumstances of this war, if [Watada] had deployed, he would have been facilitating a Nuremberg crime against peace."

The invocations of Nuremberg at the hearing were repeated and served as a rather stark reminder of how different the posture of the U.S. is these days than it was in the 1940s, when the American government helped organize the Nuremberg trials to deal with the war crimes committed by the Germans during World War II. Those trials helped cement in international law the idea that soldiers have an obligation to disobey illegal orders, along with the idea that certain wars cannot be justified—such as a "war of aggression" by one country against another country that has not attacked it. While in the 1940s the U.S. was helping to create these international norms for warfare, these days it is bending—some would say outright breaking—the rules it once backed. It attacked Iraq, for example, without the UN authorization that is required, according to Boyle, in order to keep a war from being deemed an illegal "war of aggression."

Another prong of Watada's argument was that he would inevitably be a party to war crimes were he to deploy in Iraq. Noting the Abu Ghraib torture scandal, the alleged use of cluster bombs in civilian areas, and the reported rapes and murders committed by U.S. soldiers in Iraq, Boyle said that if Watada deployed to Iraq, "it would be difficult, if not impossible, for him not to be committing war crimes."

This was the easier of the two prongs for Keith, the military prosecutor, to attack. "By this reasoning, if you will, has everyone in theater committed war crimes just by the fact of their deployment?" Keith asked.

Boyle's response was that Watada, because he was a lieutenant and because he had made it his business to learn about U.S. misconduct, would be more culpable than the average grunt. "The more you know, and the higher your rank, the more your responsibility," he said.

On the question of whether the war itself was illegal, however, prosecutor Keith could only point out that no legal or international body—not the UN, not the U.S. Congress, and not the U.S. court system—has yet declared the war to be a violation of international law. Boyle agreed that this was so. But he and other witnesses also pointed out that the UN's structure makes it nearly impossible to sanction the world's sole superpower, that no American civilian court has yet been asked to rule on the legality of the Iraq war, and that the Bush administration was able to procure its war authorization from the current U.S. Congress "by means of fraud—they lied to Congress that Iraq had weapons of mass destruction, and they lied to Congress that Iraq had connections to 9/11."

* * *

Watada, sitting slightly slouched, was all but silent during the proceedings, speaking only to tell the military investigator that he didn't wish to make a statement. Prosecutors, however, played a number of clips of Watada speaking in public about his reasons for not deploying. In one clip, shot at a recent Veterans for Peace conference in Seattle, Watada is seen explaining what he hopes to accomplish. "Today I speak with you about a radical idea," he says. "The idea is this: that to stop an illegal and unjust war, the soldiers and service members can choose to stop fighting it." The prosecutors' use of this clip seemed intended to hammer home how dangerous it might be to military morale and discipline if Watada's example were followed.

It doesn't seem, however, that a huge mass of soldiers is yet following Watada's lead. In fact, Watada is believed to be the only officer so far to have refused duty in Iraq, and while prosecutors worried during the hearing that his example would hurt army morale and discipline, after the hearing, Lieutenant Colonel Dan Williams, spokesman for Fort Lewis, told reporters that Watada's actions were doing no such thing. "My morale is just as high as it was yesterday," Williams said. "This is an anomaly."

The military is speaking out of both sides of its mouth on this score—arguing during the hearing that Watada is a threat to order and discipline and arguing to the media that he is not—but the fact remains that Watada has not inspired a large number of soldiers to throw their weapons down. His impact, at this point, appears to be mainly as another piece of the steady legal assault that is taking apart the grand narrative by which the Iraq war was sold and conducted—the narrative in which the war is completely justified and any criticism of the Bush administration or its conduct of the war can be dealt with by an official saying, essentially, "Trust us, we're protecting you; don't ask too many questions and don't worry about the law." (Or, when that fails, attacking the critic's patriotism or sanity.)

There are signs that the administration is increasingly worried about the unraveling of its war narrative—especially with the midterm congressional elections just 60 days away—and recently, the nation's courts have given the administration even more cause for concern. In June, the U.S. Supreme Court ruled that the administration's attempt to ignore the Geneva Conventions for prisoners in the war on terror was illegal. Last week, a federal judge in Detroit ruled that the administration's domestic spying program was unconstitutional, with the judge, Anna Diggs Taylor, using her ruling to remind Bush that he is not allowed "unfettered control," particularly when his actions "disregard the parameters clearly enumerated in the Bill of Rights" (that ruling is now being appealed). And a CNN poll released on Monday showed opposition to the Iraq War now at its highest level ever, 61 percent.

The tide seems to be shifting, and in a sign of the concern this is generating within the administration, officials representing Bush are currently circulating proposed amendments to the federal war-crimes law, apparently hoping to give themselves a way out should they someday be charged under that statute. That's not the tactic of a group of people who feel they are on the right side of the law, or public-opinion trends.

In this context, it seems impossible that the army will be allowed to go easy on Watada. In all likelihood, he will go to jail for refusing to deploy. He has said he is at peace with his decision, and with his possible punishment. As one of his own witnesses at the hearing, retired army Colonel Ann Wright, put it: "If you challenge an order, you do it at your own jeopardy."

Still, Wright added, army commanders, and their civilian leaders, suffer from being unable to convincingly explain, to Watada or anyone else, why the Iraq war shouldn't be seen as illegal under international law. This failure probably shouldn't be surprising, given how often the rationale for the war has shifted—from WMDs to spreading democracy to the self-justifying notion that we can't leave because we're now there. But this lack of good answers, Wright said, hurts military order and discipline more than anything else.

"Good order and discipline," she told the army investigator, "is based on the fact that good leaders can explain things to their soldiers."